ICJ’s Kosovo ruling: unprecedented politically and a precedent legally

by Hovhannes Nikoghosyan

Published: Tuesday August 03, 2010

Former foreign minister Vartan Oskanian (center) visited with late Kosovo leader Ibrahim Rugova (left) in 2001. Armenian Foreign Ministry

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Yerevan - After the International Court of Justice - the highest international court under United Nations' jurisdiction - issued its advisory opinion on the legality of unilateral declaration of independence by the one-time Yugoslav Albanian enclave of Kosovo, tensions and discussions over its character swept media outlets. This is especially relevant to the regions where similar conflicts exist.

Whether the ICJ decision can be treated as a precedent legally or not, in fact it would encourage other secessionist entities around the globe to action rekindling hopes for international recognition.

Naturally, whether Kosovo's case sets a precedent or not, strongly depends on the stance of major powers that are supporting Kosovo's bid to become a full member to international community. Currently those powers say all conflicts should be dealt with individually.

When it comes to the issue of Nagorno Karabakh, it is crucial to pay attention to the details and the background more than to present day speculations around it.

Quite possibly, for some authors involved in Caucasus/Caspian regional security debates, it was predictable that the ICJ ruling of July 22 would become a cold shower to Azerbaijani government, which continues to make one-sided allegations about the Nagorno Karabakh process by, for instance, prioritizing the norm of territorial integrity over the other jus cogens norms of modern international law.

Ironically, some unbiased experts, including those in Armenia, have uncritically followed this debate driving them to gridlock in that one-way traffic.

I would join my good friend, Dr. Tigran Nahapetyan - an expert of international law at Yerevan-based Public Policy Institute, saying that perhaps not the ruling itself, but the proceedings and the statements made by different countries at ICJ make the real atmosphere of change in the international relations when it comes to the issues of territorial integrity, inviolability of frontiers and self-determination.[1]

Surely, the change is of legal nature, not political. Of course, politically, the ICJ ruling over Kosovo would remain politically meaningless without support of Kosovo's foreign backers.

Nevertheless, legally this is the first ever high-level ruling in favor of unilateral declaration of independence of a secessionist entity seeking to establish a de jure statehood.

Today no one denies that the authorities in the de-facto Nagorno Karabakh Republic, or NKR, have their sovereignty over certain territories, where some people live on and those people do recognize the legitimacy of the central authorities.[2]

Another yet important element to be labeled as a functioning statehood, according to the Montevideo Convention, is the permanently functioning government, which is successfully configured at general elections.

For the people of Nagorno Karabakh this fact was recognized through the CSCE/OSCE decision in Helsinki in 1992 where the states decided to establish and invite the "elected and other representatives" of NKR to the future Minsk Conference.

Obviously, the conduct of general elections thus becomes implicitly encouraged by the OSCE itself, which runs to declarations by Azerbaijan and others declaring NKR elections "illegal."

To set this discussion into a wider context, we should acknowledge that a conflict resolution process in any pattern of international disagreements receives its solution in specific frameworks of international mediation, which is explicit only towards a particular situation, considering the politics, political economy and geopolitics surrounding the conflict.

In order to find and employ that specific mediation format the consent from all relevant parties is required. And, it's notable that the usage of the wording "all relevant parties" means not only the ones directly involved in the hostilities but also all the stakeholders that have a share in those geopolitics.

Not to make this entry a lecture on conflict resolution, the snapshot of the issue of mediation is an utmost important component of the conflict itself since a short while later it becomes actively playing a role of a determinant to the future solution.

For instance, though "impartiality" is a vital component of any mediation efforts, over time the peacekeepers tend to side with one or another of the parties. One example of this is of KFOR in Kosovo; and another of Russian peacekeepers in South Ossetia.

This is also true with regards to Nagorno Karabakh peace process, which went through a complex evolution. While countries such as Russia, Kazakhstan, Iran and individual European states tried to have their own input in the pursuit of a lasting solution, since 1997 the institute of triple co-chairs - France, Russia and U.S. - was established.

Though efforts of Azerbaijan to jeopardize the Minsk process, taking the NK issue to other institutions such as PACE or UN, the OSCE track persevered most significantly because of the mediator countries' determination seen most overtly through their opposition to the Azerbaijan-sponsored resolution in the UN General Assembly in 2008.

After years of tireless efforts at UN General Assembly to condemn Armenians for winning the imposed war, now, following the UN court ruling, the official representative of the Azerbaijani Foreign Ministry, Elhan Poluhov, says Nagorno Karabakh issue is the monopoly of OSCE Minsk Group to deal with.[3]